07 February 2012

Bravo! The Ninth Circuit Court of Appeals has upheld the landmark ruling by Chief U.S. Judge Vaughn Walker that found California's voter approved same-sex marriage ban is unconstitutional.

The 2-1 decision in Perry v Brown found Proposition 8 violated the U.S. Constitution. "Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California," said the court.

"The ruling is narrow and likely to be limited to California," adds the Los Angeles Times.

In a separate decision, the appeals court refused to invalidate Walker’s ruling on the grounds that he should have disclosed he was in a long term same-sex relationship. Walker, a Republican appointee who is openly gay, said after his ruling that he had been in a relationship with another man for 10 years. He has never said whether he and partner wished to marry.

ProtectMarriage, the backers of Proposition 8, can appeal Tuesday's decision to a larger panel of the 9th Circuit or go directly to the U.S. Supreme Court. The high court is expected to be divided on the issue, and many legal scholars believe Justice Anthony Kennedy will be the deciding vote.

The backers of the 2008 initiative have vowed to appeal the case.

Walker's August 2010 ruling came almost two years after California voters approved the same-sex marriage ban in a heartbreaing November 2008 initiative. Former Republican Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown refused to appeal Judge Walker's decision. Newly inaugurated Gov. Jerry Brown and Attorney General Kamala Harris also refused to defend the ballot measure.

16 February 2011

On January 4, the 9th U.S. Circuit Court of Appeals punted the appeal of the landmark Prop 8 ruling to the California Supreme Court. You'll recall the federal court "certified" a request to the California Supreme Court on the question of "standing"—asking if the supporters of the voter-approved marriage ban can defend the measure in court when state officials refuse to do so.

The state high court, meeting in closed session, will review a request by the U.S. 9th Circuit Court of Appeals to determine whether Proposition 8’s sponsors have legal authority to defend the ballot measure. Depending on the court’s ruling, the 9th Circuit could either dismiss the Proposition 8 appeal on procedural grounds -- limiting the case’s effect to California -- or rule on federal constitutional questions that would affect same-sex marriage throughout the country.

Former Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown refused to appeal Chief U.S. Judge Vaughn Walker's August 2010 decision striking down the ban as unconstitutional. Newly inaugurated Governor Jerry Brown and Attorney General Kamala Harris also refuse to defend the ballot measure.

06 December 2010

This morning in San Francisco, a three-judge panel of the U.S. Ninth Circuit Court of Appeals begins hearing oral arguments in Perry v. Schwarzenegger, the landmark federal challenge to Proposition 8. In August, Chief U.S. Judge Vaughn Walker struck down the voter-approved same-sex marriage ban, finding that it violated the Due Process and Equal Protection clauses of the U.S. Constitution.

The hearing on Monday will unfold in two parts and cover two issues. The first is the question of legal standing: the major defendants in the case — Gov. Arnold Schwarzenegger and Attorney General Jerry Brown — have opted not to defend the measure, leaving the defense to groups like [the Alliance Defense Fund].

Mr. Brown was elected governor last month, meaning the state’s next chief executive will not support the ban. David Boies, the veteran Washington lawyer challenging the measure, said that proponents would need to prove that their lives were being directly, and substantially, harmed by Judge Walker’s decision in order to prove their standing. "It’s not enough that you have a policy disagreement," Mr. Boies said.

While the state has opted out of the defense, in September, officials in Imperial County — a rural area east of Los Angeles that has one of the highest unemployment rates in the state — filed briefs to defend the measure, saying that Judge Walker had disregarded the will of California’s voters, who passed Proposition 8 in 2008 with 52 percent of the vote.

The judges will spend the second part of Monday’s hearing on the actual legality of Proposition 8. Opponents have argued — and Judge Walker agreed — that voters had no legitimate state interest in defining marriage as exclusively between a man and a woman, and provided more than a dozen witnesses during testimony in January to back up their case. Supporters of the measure offered two witnesses.

The San Francisco Chronicle outlines the next steps in the federal appeals process for the case that almost certainly will be appealed to the Supreme Court.

30 November 2010

Some potentially good news for Ted Olson, David Boies and everyone opposed to Proposition 8: The three-judge judicial panel for the Ninth Circuit Court of Appeals' hearing on Monday has been announced.

"Judge Stephen Reinhardt, the leader of the 9th Circuit's liberal bloc and often at the center of some of the court's most controversial decisions, will hear the case, along with Michael Daly Hawkins, an Arizona-based judge and Clinton appointee generally considered a moderate but is often more liberal on social questions. The panel, which was randomly assigned and revealed Monday, is rounded out by one clear conservative, Idaho-based Judge N. Randy Smith, one of the court's newest members and a Republican appointee of former President George W. Bush."

"Reinhardt may well be the most aggressive liberal judicial activist in the nation—and the most reversed judge in history. Hawkins, is also regularly on the Left ... With two hard-core liberals, the panel is a fairly typical Ninth Circuit draw—which is to say, a bad one for supporters of Prop 8."

28 November 2010

The San Francisco Chronicle and San Jose Mercury News applaud the victory of Proposition 8 opponent Kamala Harris as California's next attorney general. The Democratic San Francisco District Attorney General's win was certified last week, some three weeks after the Nov. 2 election against Republican Los Angeles County DA Steve Cooley. Harris, who is biracial and a veteran champion of LGBT rights, becomes the state's first female attorney general and the nation's first Black female attorney general.

"Cooley ... seemed like a shoo-in for California attorney general. He'd handily won L.A. County elections. But those were nonpartisan races. On the state ballot, Cooley had an R next to his name -- apparently a scarlet letter on several levels in California. The tea party anger and no-to-everything obstructionism of the national GOP, even when it's clearly at the expense of the public good, may or may not be a long-range winner. But here, voters clearly prefer the olden days when parties compromised to make progress."

"Most analysts regarded Cooley as the surest bet on the Republican ticket, even in a Democratic state. He kept to a meat-and-potatoes platform that emphasized the office's crime-and-punishment duties - accentuating his eagerness to inflict the death penalty - and to dial back what he regarded as Attorney General Jerry Brown's aggressive interpretation of his discretion to enforce and ignore laws passed by legislators and voters.

"California voters, however, had other ideas. They chose Harris, the 46-year-old career prosecutor with the more thoughtful and expansive vision of the role of an attorney general. As with Brown, Harris said she would not defend laws she regarded as blatantly unconstitutional (such as Prop. 8, the voter-approved ban on same-sex marriage) and would help assure the implementation of the state's landmark climate-change law. Harris pledged to enforce the state's death penalty law despite her personal opposition to it - but she repeatedly and correctly reminded voters that it was not the most pressing criminal-justice issue in the state."

19 September 2010

New developments over the weekend in the federal challenge to Proposition 8. Attorneys for the ban's sponsors filed arguments with the 9th U.S. Circuit Court of Appeals and claim Chief U.S. Judge Vaughn Walker is "one-sided" and "willfully" disregarded precedent when he decided the voter-approved marriage ban was an unconstitutional violation of gay Californians' civil rights.

"The district court based its findings almost exclusively on an uncritical acceptance of the evidence submitted by Plaintiffs' experts, and simply ignored virtually everything — judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive historical and documentary evidence — that ran counter to its conclusions," the defendant-intervenors argued in their 134-page opening brief.

Prop 8 supporters said it was "defamatory" for Judge Walker to rule that gays are entitled equal protection under the law, reports the AP.

The appealing attorneys, who called two witnesses compared to 18 for the plaintiffs, asked the 9th Circuit to ignore the trial testimony on which Walker laboriously based his opinion, calling it "unreliable and ultimately irrelevant" to whether Proposition 8 passes constitutional muster. "Having blinded itself to the genuine animating purpose of marriage, the district court was obliged to offer a different rationale for the institution, presumably one that is entirely indifferent to the gender of the spouses," they wrote.

They also characterized as defamatory the judge's conclusion that "moral disapproval" of gay men and lesbians was the main reason voters passed Proposition 8 in November 2008. "The district court decision is an attack on the many judges and lawmakers and millions of Americans who rightly and reasonably understand that marriage is the unique union of a man and a woman," said Alliance Defense Fund attorney Brian Raum, who is part of the legal team fighting to uphold Proposition 8. "The Hollywood-funded opposition wants to impose -- through a San Francisco court -- an agenda that America has repeatedly rejected."

LGBT POV's Karen Ocamb dissects their motion and notes that pro-creation is the so-called "animating purpose of marriage."

“Nowhere in its 136-page opinion does the district court even cite any of the evidence overwhelmingly acknowledging responsible procreation and child-rearing as the animating purpose of marriage. All of the evidence – the judicial authority from California and almost every other State, the works of eminent scholars from all relevant academic fields, the extensive historical evidence – is simply ignored. And the district court ignored it quite willfully; in the court’s view, apparently only oral testimony presented at trial constituted “evidence” on the issue (and its treatment of even this evidence was egregiously selective and one-sided….).”

Chief U.S. District Judge Vaughn Walker, who declared the initiative unconstitutional
August 4 in a landmark ruling, has suggested that only the state has
"standing" to defend the law. Republican Gov. Arnold Schwarzenegger and Democratic Attorney General Jerry Brown have refused to defend the ballot initiative in court. Two weeks ago, California 3rd District Court of Appeals rejected a motion that sought to compel the State of California to defend Proposition 8.

The plaintiffs in Perry v Schwarzenegger are scheduled to file responses next month. oral arguments the first week of December. Oral arguments begin in San Francisco on December 6th.

Thousands of Christian conservatives spent 12 hours Saturday praying and fasting in front of the state Capitol at a gathering organizers described as spiritual repentance "when there is no hope for a nation." The daylong religious event was led by Lou Engle as well as other pastors and speakers to protest gay marriage, pornography and abortion. Many of those attending slapped red "Life" stickers over their shirts and set up blankets and folding chairs facing a large stage with banners that read: "Only One Hope God."

People close to the front of the stage held up their hands when called to prayer. They jumped and danced to musical performances between sermons. The gathering filled the west lawn of the state Capitol and hundreds of people spilled into the next block, but the rest of Capitol Mall's five-block-long lawn went unused despite large screens and barricades set up for the occasion.

Engle, Mike Huckabee and other social conservatives blasted Chief U.S. District Judge Vaughn Walker, who declared Proposition 8 unconstitutional in a landmark ruling last month, reports the Sacramento Bee.

Among the speakers was Tony Perkins, a leader of the religious right and head of the Washington lobbying group the Family Research Council.
Perkins railed against U.S. District Judge Vaughn Walker for overturning Proposition 8, California's ban on same-sex marriage. He said Walker's ruling diminished the legal rights of religious people opposed to gay marriage.
"If (the ruling) stands, in one generation we will have gone from banning the Bible in public schools to banning religious beliefs in society," Perkins said. The event's organizer, conservative Kansas City evangelist Lou Engle, urged the crowd to "break the altar of homosexual marriage."

The event was free of charge but people were "regularly asked to put donations in the 'offering stations.'"

Not on their prayer agenda: Hunger, poverty, homelessness, human rights, domestic abuse or HIV/AIDS. However, the Sacramento Bee adds the crowd was also asked to pray for "clergy addicted to pornography, bisexual women—even middle-aged men who play video games."

31 August 2010

A social conservative legal organization is attempting to force the State of California to defend Proposition 8.

The Sacramento-based Pacific Justice Institute has petitioned the 3rd District Court of Appeal to compel Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to defend the ballot initiative against its current legal challenge in the Ninth U.S. Circuit Court of Appeals.

The institute is arguing that as the state's chief law enforcement officer, Brown does not have discretion to defend only laws with which he personally agrees. And because the California Constitution gives the governor final say when he and the attorney general disagree on legal matters,
Schwarzenegger must be compelled to file an appeal to preserve
Proposition 8 as well, the group's lawsuit states.

The institute brought its motion on behalf of Joshua Beckley, pastor of Ecclesia Christian Fellowship church in San Bernardino, and included with it a declaration of support from former U.S. Attorney General Edwin Meese III.
Meese, who served one term as attorney general under President Ronald Reagan and Reagan's legal adviser when he was governor of California, said that Schwarzenegger and Brown's positions were at odds with his own experience.

Whitman said, "The issue right now is, as I understand is 'Will
Proposition 8 have the appropriate support to actually make an appeal to
the circuit court of appeals?'And I think the governor, the attorney
general today has to defend the constitution and has to enable the
judicial process to go along and has to enable an appeal to go through.
So if I was governor, I would give that ruling standing to be able to
appeal to the circuit court." Whitman's campaign later told The Bee that she would become a defendant in the appeal of Walker's ruling if needed.

Chief U.S. District Judge Vaughn Walker, who declared the initiative unconstitutional August 4 in a landmark ruling, has suggested that only the state has "standing" to defend the law. The appeal will be heard in San Francisco on December 6th.

16 August 2010

Same-sex marriages will not be going forward this week in California. The Ninth U.S. Circuit Court of Appeals has granted a request by supporters of Proposition 8 to stay Chief U.S. District Judge Vaughn Walker's order that would have barred the state from enforcing Proposition 8.

Ted Olson and David Boies will not appeal the order to the U.S. Supreme Court because the defendants will be forced to address a crucial issue: Standing.

[T]he appeals court asked
the ballot measure's lawyers to offer arguments on why they have the
legal right to appeal when the state's top two officials, Gov. Arnold
Schwarzenegger and Attorney General Brown, refuse to defend the law and
say it is unconstitutional. Gay rights lawyers and San Francisco city
officials have argued in court papers that the Proposition 8 campaign
does not have legal standing to appeal, and Walker himself questioned
whether they do in his order last week.